Page images

took the ground that the convention, having been constitutionally concluded and ratified, was obligatory on every department of the two Governments. In April, 1833, the French Government presented to the Chamber of Deputies a bill to carry the convention into effect. In April, 1834, this bill, when pressed to a vote, failed of passage by eight votes. The Government promised to resubmit the bill to the chambers at the session beginning in the following December; and Edward Livingston, who was then minister of the United States in Paris, in reporting the French Government's determination, said that it had been intimated to him that favorable action by the chambers would be promoted by a display of "energy" in the President's message to Congress. This hint was not lost upon President Jackson, who, in his annual message of December, 1834, after expressing the opinion that commercial retaliation would be ineffective, declared it to be his conviction that the United States ought to insist upon the prompt execution of the treaty, and, in case it should be refused or longer delayed, to take redress into its own hands and proceed to make reprisals. "The laws of nations," said President Jackson, “provide a remedy for such occasions. It is a well-settled principle of the international code that where one nation owes another a liquidated debt, which it refuses or neglects to pay, the aggrieved party may seize on the property belonging to the other, its citizens or subjects, sufficient to pay the debt, without giving just cause of war. This remedy has been repeatedly resorted to, and recently by France herself towards Portugal, under circumstances less unquestionable."

The Senate, acting upon the view set forth by Mr. Clay in a report from the Committee on Foreign Relations of January 6, 1835, unanimously adopted, on the 14th of the same month, a resolution to the effect that it was inexpedient at that time to adopt any legislative measures in regard to the state of affairs between the United States and France. In a message of February 25, 1835, however, the President stated that he had instructed Livingston to quit France with his legation and return to the United States, if an appropriation for the fulfillment of the convention should be refused by the Chambers. On the following day a report on relations with France was made by Mr. Cambreleng, from the Committee of Foreign Affairs, while a minority report, signed by Edward Everett and two other members of the committee, was also presented. On February 28, after a debate that extended far into the night, the House resolved that the execution of the convention should be insisted on, and that preparations ought to be made for any emergency growing out of the differences between the two countries.

In France, the President's recommendation of reprisals, which evidently exceeded in "energy" what had been desired, was received

as a measure of hostility. Livingston expressed regret that it should. be so interpreted, but the French minister at Washington was recalled, Livingston was offered his passports, and the Chamber of Deputies was informed that diplomatic intercourse with the United States had been suspended. On March 28, 1835, an appropriation was made by the Chamber of Deputies, but it was coupled with the condition that the money should not be paid to the United States till satisfactory explanations should be made of the President's message. Livingston asked for his passports and withdrew from Paris, leaving the legation in charge of Mr. Barton, as chargé d'affaires. President Jackson declined to make any explanations of his message, both on the ground that all its statements were justified by the facts, and that the right of a foreign government to ask explanations of or to interfere in any manner in the communications of one branch of the Government of the United States with another could not be admitted. Mr. Barton was instructed to surrender his mission and return home in case the money due was not paid, and, as payment was still withheld, he left France and returned to New York, where he was joined by Mr. Livingston, who went with him to Washington. Meanwhile, however, President Jackson, in his annual message of December 7, 1835, after devoting a long passage to a review of the controversy and maintaining the position which he had previously held, declared that the conception that he had intended " to menace or insult the Government of France was as unfounded as the attempt to extort from the fears of that nation what her sense of justice might deny would be vain and ridiculous." In a special message to Congress of January 8, 1836, he recommended the exclusion of French products and French vessels from the ports of the United States in case the money should continue to be withheld. But all occasion for the consideration of coercive measures soon passed away. The French Government received the expressions in the President's message of December 7, 1835, in regard to his supposed intention to menace France, as a satisfactory explanation. On January 27, 1836, Mr. Bankhead, British chargé d'affaires at Washington, informed the United States that he was instructed to express the hope that, if the parties would agree to refer to the British Government the settlement of the point at issue between them and to abide by its opinion, means might be found. of satisfying the honor of each. President Jackson accepted the mediation, with the reservation that no expressions of regret and explanations should be required. On the 15th of February Mr. Bankhead stated that the French Government had declared that the frank and honorable manner in which the President had, in his message of December 6, 1835, expressed himself with regard to the points of difference between the two Governments, had removed the difficulties on the score of national honor, and that the French Govern

ment was ready to pay the installments due whenever they should be claimed by the United States. The French Government accepted the offer of mediation, but by this declaration, which was made to the British Government as a channel of communication, the necessity of a formal mediation was dispensed with. On May 10, 1836, President Jackson, with many friendly expressions towards France, informed Congress that the first four installments under the treaty had been received. The rest of the money was duly paid.

Moore, Int. Arbitrations, V. 4460–4468, citing H. Ex. Doc. 147, 22 Cong. 2 sess.; act of July 13, 1832, 4 Stat. 574; H. Ex. Docs. 2, 40, 136, and 174, 23 Cong. 2 sess.; H. Ex. Doe. 2, 24 Cong. 1 sess.; S. Ex. Docs. 62, 63, and 187, 24 Cong. 1 sess.; H. Ex. Doc. 254, 24 Cong. 1 sess.; S. Ex. Doc. 351, 25 Cong. 2 sess.; H. Ex. Doc. 417, 25 Cong. 2 sess.; H. Ex. Doc. 183, 26 Cong. 1 sess.

Mr. Clay, in his report from the Committee on Foreign Relations, said:

"The President is under a conviction that the United States ought to insist on a prompt execution of the treaty; and, in case it be refused, or longer delayed, take redress in their own hands. He accordingly recommends that a law be passed authorizing reprisals upon French property, in case provision shall not be made for the payment of the debt at the approaching session of the French Chambers. This measure he deems of a pacific character, and he thinks it may be resorted to without giving just cause of war.

"It is true, that writers on the public law speak and treat of reprisals as a peaceful remedy, in cases which they define and limit.

Reprisals do not of themselves produce a state of public war; but they are not unfrequently the immediate precursor of it. When they are accompanied with an authority, from the Government which admits them, to employ force, they are believed invariably to have led to war in all cases where the nation against which they are directed is able to make resistance. It is wholly inconceivable that a powerful and chivalrous nation, like France, would submit, without retaliation, to the seizure of the property of her unoffending citizens, pursuing their lawful commerce, to pay a debt which the popular branch of her legislature had refused to acknowledge and provide for. It cannot be supposed that France would tacitly and quietly assent to the payment of a debt to the United States, by a forcible seizure of French property, which, after full deliberation, the Chambers had expressly refused its consent to discharge. Retaliation would ensue, and retaliation would inevitably terminate in war. In the instance of reprisals made by France upon Portugal, cited by the President, the weakness of this power, convulsed and desolated by the ravages of civil war, sufficiently accounts for the fact of their being submitted to, and not producing a state of general hostilities between the two nations.

"Reprisals so far partake of the character of war, that they are an appeal from reason to force; from negotiation, devising a remedy to be applied by the common consent of both parties, to self-redress, carved out and regulated by the will of one of them; and, if resistance be made, they convey an authority to subdue it, by the sacrifice. of life, if necessary.

"The framers of our Constitution have manifested their sense of the nature of this power, by associating it in the same clause with grants to Congress of the power to declare war, and to make rules concerning captures on land and water."

"Without dwelling further on the nature of this power, and under a full conviction that the practical exercise of it against France would involve the United States in war, the committee are of opinion that two considerations decisively oppose the investment of such a power in the President to be used in the contingency stated by him. "In the first place the authority to grant letters of marque and reprisal being specially delegated to Congress, Congress ought to retain to itself the right of judging of the expediency of granting them under all the circumstances existing at the time when they are proposed to be actually issued. The committee are not satisfied that Congress can, constitutionally, delegate this right. It is true that the President proposes to limit the exercise of it to one specified contingency. But if the law be passed as recommended, the President might, and probably would, feel himself bound to execute it in the event, no matter from what cause, of provision not being made for the fulfillment of the treaty by the French Chambers, now understood to be in session. The committee can hardly conceive the possibility of any sufficient excuse for a failure to make such provision. But, if it should unfortunately occur, they think that, without indulging in any feeling of unreasonable distrust towards the Executive, Congress ought to reserve to itself the constitutional right, which it possesses, of judging of all the circumstances by which such refusal might be attended; of hearing France, and of deciding whether, in the actual posture of things as they may then exist, and looking to the condition of the United States, of France, and of Europe, the issuing of letters of marque and reprisal ought to be authorized, or any other measure adopted."

The report concluded with a resolution that it was "inexpedient, at this time, to pass any law vesting in the President authority for making reprisals on French property."

Report of Mr. Clay, Committee on Foreign Relations, Jan. 6, 1835, S. Doc. 40, 23 Cong. 2 sess. 40; 11 Congressional Debates, part 1, pp. 103, 200.

"In every case, particularly when hostilities are contemplated, or appear probable, no government should commit itself as to what it

will do under certain future contingencies. It should prepare itself for every contingency,-launch ships, raise men and money, and reserve its final decision for the time when it becomes necessary to decide and simultaneously to act. The proposed transfer by Congress of its constitutional powers to the Executive, in a case which necessarily embraces the question of war or no war, appears to me a most extraordinary proposal, and entirely inconsistent with the letter and spirit of our Constitution, which vests in Congress the power to declare war and to grant letters of marque and reprisal."

Mr. Gallatin to Mr. Everett, Jan. 5, 1835, 2 Gallatin's Writings, 475.
See, also, criticism in 3 Phillimore, Int. Law (3d ed.), 41.

"As respects your other query, I must say that I am very adverse to
restrictive commercial measures for any purpose whatever. Expe-
rience must have taught us, beginning with the non-importation re- -
strictions and agreement which preceded the war of independence,
and ending with the various non-intercourse laws which were enacted
between December, 1807, and June, 1812, how inefficient measures of
this description generally are for the purpose of forcing another
country to alter its policy. It is true that they may occasionally
offer a pretense for it when that country already wishes to do it and
only wants a pretense. Had the official notice of the repeal of the
Milan and Berlin decrees (for which repeal some one law of ours had
afforded a pretense) reached England two months earlier, it may be
that a timely repeal of the orders in council would have prevented
the war.
Sometimes, also, if restrictions can be applied immediately
to the object in dispute (a retaliating tonnage duty) so as to operate
as direct reprisal, they may prove effective. In the present instance
they can not be so applied, and I would doubt their efficacy towards
obtaining a prompt execution of the treaty. It would have been
much preferable to have been fully aware of the great and intrinsic
difficulties which stood between the signing of the treaty and its
being carried into effect, and instead of increasing these to have used
some further forbearance, and, without recurring to any coercive or
restrictive measures, to have suffered the King of the French to man-
age the affair in his own way with the Chambers. Had that course
been pursued, there is no doubt that he would have continued to
make every exertion for obtaining their assent; and I am confident
that the treaty must infallibly have been ultimately ratified. The
fundamental error, on the part of our Government, consists in not
having been sensible that, in the present situation of France, the real
power is not with the King, but with the popular branch." (Mr.
Gallatin to Mr. Everett, Jan. 1835, 2 Gallatin's Writings, 492.)
In the case of New Hampshire . Louisiana (1882), 108 U. S. 76, a suit
was brought in the Supreme Court of the United States by the
former State against the latter to secure the payment of defaulted
coupons of Louisiana State bonds. To enable the suit to be brought
in the name of the State, the legislature of New Hampshire author-
ized its citizens, who were owners of the bonds, to make assignments
to the State and arrange for the payment of costs and expenses with-
out burdening the State treasury. Similar legislation was enacted
by the legislature of New York, and a similar suit brought by that

« PreviousContinue »